August 15, 2012

A recent headline — Parents angry after finding children’s names on police ‘gang lists’ contains the epitome of parental denial of a problem.Are there really parents in today’s world who believe their kids are innocent just because the kid says they are?Back in the day, women who attended Mom School learned to tell their kids that who you are is affected by with whom you associate. This advice was more likely passed on with comments like, “Don’t hang around them boys — they are trouble.”Men had a school, too, but many of us failed to graduate, so all we were able to say in support was “You heard your mother, boy, don’t make her tell you again.”Apparently Mom and Dad school have lower attendance numbers or, maybe, this isn’t taught any more. Nonetheless, it’s a timeless principle — except when you fail to accept responsibility for the children you bring into this world.Here’s a few clips from the story, in an attempt to put (what I see as) the reality into perspective . . .Neither boy had ever been arrested and, (the mother) said, (and) neither was involved with gangs.Well, the mother may be an authority on whether her son had ever been arrested, though the police would know better. She is not an authority on whether her son is in a gang, unless, of course, she is with him around the clock. What this response means is either 1) my son told me he is not in a gang and those drawings on his school papers and suspicious friends he hangs with don’t convince me otherwise, or 2) I have more important things to do than keep track of my son’s whereabouts and have taught him that denying reality makes it go away.. . . more than 50 people, all but a few of them black, showed up . . . heard eight representatives of law enforcement agencies, all but two of them white, tell them why they keep these lists and how they use them.Anytime the media, or observers for that matter, make a point to note the races of those involved without also showing why that was important, it’s not. More police officers are white and more street gang members are black. That’s not something that affects the facts of the case. I am pretty sure it doesn’t change readership.JR got on the list, according to Largo police records, because police found 11 pictures of him online displaying 119 Boys hand signals, and because a police officer saw him once with other gang associates, and because he once ran away from a sheriff’s deputy while accompanied by another gang member. “It’s hurtful,” said JRs mother, about her son’s inclusion.Those facts, for people who are not the boy’s parents, serve as a clear indication that he at a minimum has an interest in local gags and more likely is an associate or member. These are also an indication that the boy’s parents haven’t seen the indicators or have ignored them and denied they are indicators. They are not an indication that the police intended anything to be “hurtful” as that’s not in their job description.. . . prosecutors use the lists to get higher bail amounts and longer prison sentences. Prosecutors need to prove gang membership to a judge before a harsher sentence can be imposed. Public Defender Bob Dillinger doesn’t like how the lists are used to set higher bail.”You have no way of knowing it (gang member status) is accurate,” Dillinger said. “If the police say it, that’s it.”No, Mr. Dillinger, you actually have a way to know whether the list is accurate — beyond the police simply “saying it” — it’s the part above where it says “Prosecutors need to prove gang membership to a judge.” That’s how (and why) our justice system works.If you saw this as a rant, then it’s over. Something had to be said. If you are a parent and want to know what indicators to look for — check out the warning signs.What do you think?

August 8, 2012

The FBI’s National Gang Intelligence Center (NGIC) keeps us updated on their “conservative” estimate of the number of gang members in the United States. At last count there were 1.4 million. That figure represented an increase of 400,000 over the conservatively estimated 1,000,000 as of September 2008. The 2009 NGIC estimate represented 212,000 more gang members (26% higher) than the 2007 report. The estimate was 215,000 (28%) higher than the number of gang members reported by the National Youth Gang Center in 2006 (NYGC). The estimate was also 200,000 (25%) higher than the 800,000 gang members reported by the Federal Bureau of Investigation’s Deputy Director Pistole (2008) in March of 2008. Meanwhile, the National Youth Gang Center reports gang membership is now pretty close to where it was 15 or so years ago (1996-2010). Following a yearly (limited) decline from 1996 to a low in 2003, annual estimates steadily increased through 2010 (NYGC).

And how are those increases in membership numbers achieved? Recruiting. In some places it’s called “cause, induce or solicit another person to participate in.”Many local jurisdictions have started targeting recruiting for gangs — making it a violation of the law. And some states have shown an interest in doing the same (specifically AL, AK, AZ, AR, CA, CO, DE, DC, FL, GA, ID, IL, IN, IA, KS, KY, LA, MD, MA, MI, MT, NE, NV, NH, NJ, NC, ND, OK, SC, TX, UT, VA, WA, WI, WY) (that was 34 states plus the District of Columbia). Some states, for example Pennsylvania, Floridaand Georgia, have gone beyond that and said gang recruiters can’t require a prospect to commit a crime. MN has laws that don’t appear to prohibit recruiting (prohibiting simply one who solicits or conspires with a minor to commit a crime or delinquent act) , but do address other forms of threat and intimidation.Is this a strategy based on reality? Do we really think that by telling leaders of criminal groups that recruiting new members is wrong they will stop doing so? Perhaps we should also tell them that about threatening or knowingly causing injury or death; receiving money or anything of value from the commission of an aggravated burglary; or from the illegal sale, delivery or manufacture of a controlled substance or firearm, or any of the racketeering offenses we examined in Gang Laws and their inability to be useful against real criminals!Ultimately, I don’t think prohibiting recruiting will work, as intended, if the intent was to get the gang members to swear off recruiting. In fact, it reminds me of the signs my dog is inclined to ignore on our walks (until she experiences human intervention).

But it might give the kids they recruit something to think about and may give the police another strategy for stopping the gang activity that plagues our nation.What do you think?Public disclaimer: I am a founding board member of the Tennessee Gang Investigator’s Association, headquartered in Hixson, so I might have a propensity to think gang cops don’t get enough support.Like the TNGIA on Facebook!

The quote they are using has been attributed to James Whitcomb Riley, who sometime around 1883-1885, said: “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”

According to the National Gang Center (as of December 2011), among the often-used criteria for identifying gang members is that they are:

identified as a criminal gang member by a parent or guardian

identified as a criminal gang member by a documented reliable informant

That might be a problem.

A problem for Florida, Tennessee, Kansas, New Hampshire, South Dakota, and maybe Idaho (which appears vague on who does the identification required), that is.

P59: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.

P68: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

P69: Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.

So the application appears to be where one person is (or will be, or could be required to, or might as well be) testifying against another. It appears those testimonies are only usable when the person who would testify is . . . dead. Otherwise, the witness must be available for prosecution.

I suspect that due process should be a consideration when classifying a gang member either on the streets or in jail/prison, so a hearing would be the logical followup to such classification if it were to be challenged. It’s not a huge reach to suggest that the statement/testimony of another (non police) person should be subject to challenging by the accused gang member.

Numbers 13, 15, and 16 require the statement of another, non-law enforcement/corrections person to be used against the gang member in order to confirm them. That’s similar to hearsay, which is allowed only in a select few, specific circumstances. Specifically, in Crawford v. Washington, 541 U.S. 36 (2004). I suspect that 17 would be fine, as the credibility of informants is measured based on a track record so they would likely be closer to police than an everyday citizen.

It may not be a problem for those using civil law to counter the gang problem . . .

a. Commanders should remain alert for signs of future prohibited activities. They should intervene early, primarily through counseling, when observing such signs even though the signs may not rise to active advocacy or active participation or may not threaten good order and discipline, but only suggest such potential. The goal of early intervention is to minimize the risk of future prohibited activities.

– these are all feel good guidelines. The reality is that Commanders (and other unit leaders) remain alert for signs of bad morale and things that affect the mission. They usually don’t see “what someone does off duty” as something that falls into those categories. What they don’t get is that these gang members are 1) smart enough to conceal their affiliation, 2) learning trades they can use to help the gang, and 3) using their military experience and exposure to access the logistics pipeline to help drug and weapons trafficking endeavors, etc.

– The military is not and is not designed to be engaged in anything resembling early intervention or minimizing the risk of future prohibited activities. Those are activities for communities where there are youth gangs who can be deterred from crime. All military members are adults, and those who are gang members and military service members are far from intervention time.

b. Examples of such signs, which, in the absence of the active advocacy or active participation addressed in paragraphs 8.a and 8.b are not prohibited, could include mere membership in criminal gangs and other organizations covered under paragraph 8.b.

mostly explained by active participation in prohibited groups by fundraising; demonstrating or rallying; recruiting, training, organizing, or leading members; distributing material; knowingly wearing gang colors or clothing; having tattoos or body markings associated with such gangs or organizations; or otherwise engaging in activities in furtherance of the objective of such organizations that are detrimental to good order, discipline, or mission accomplishment or are incompatible with military service

These do not appropriately represent the breadth of gang crimes that should be included in “criminal gang offense.” They appear more like some of the indicators used by Departments of Correction and a few police departments to confirm gang membership. From Tennessee:

At the time the directive was initially published in 1969, the DoD was concerned with the infiltration of anti-war and anti-military organizations. The directive focused on dissident and protest activities within the military, and especially on activities such as underground newspapers, on-post demonstrations, and serviceman organizations.

In 1986, the Secretary of Defense updated the directive. The directive’s language prohibited “active” participation in “extremist organizations.” This comes from language in Executive Order (EO) 11,785 issued in 1953, during the height of the Cold War, when the government feared Communist infiltration. It was later changed to forbid designating any groups as “totalitarian, fascist, Communist, or subversive” and forbade any circulation or publication of a list of such groups.

sabotage, espionage, treason, or sedition, or attempts thereat or preparation therefore, or conspiring with, or aiding or abetting, another to commit or attempt to commit any act of sabotage, espionage, treason, or sedition

* * *

Advocacy of use of force or violence to overthrow the government of the United States

So when the explanation for the new Instruction explains that:

Signs could also include possession of literature associated with such gangs or organizations, or with related ideology, doctrine, or causes. While mere membership or possession of literature normally is not prohibited, it may merit further investigation and possibly counseling to emphasize the importance of adherence to the Department’s values and to ensure that the Service member understands what activities are prohibited.

I am tempted to ask what they are talking about when it comes to literature. Are they talking about Gang/STG documents: rosters, procedures, bylaws, codes, etc.? What about Gang/STG commercial publications? What about illustrations or artwork?

Unfortunately, these are the same questions that would allow a defense attorney to claim the instruction is vague and over-broad, and that’s an indication that more thought should be invested in it in the first place.

July 28, 2012

According to Associated Press (AP) coverage of the appellate court in the 1st District, the Florida Law prohibiting gang leaders to require new members to commit a crime to join the gang is fine, just fine.

Well that’s a relief!

The court did not like the prohibition against using technology to communicate, however. Apparently the law would have made it unlawful not just to discuss gang business but other things, as well.

The recruitment law passed constitutional muster because it applies only if criminal activity is a condition of membership. It’s been my experience that gangs and crime go hand-in-hand, and most who join gangs commit a crime to do so.

District Judge Stephanie Ray wrote that in the recruitment law, the Legislature “attempted to strike a proper balance between protecting fundamental rights and using legitimate government police powers to fight the scourge of gang-related criminal activity.” She noted several other states, including California, Texas, Indiana and Idaho, have passed similar laws, some of which also have been upheld by the courts.

Section 874.05(1), the “gang recruitment” provision, was enacted to protect the public from speech and conduct used to encourage gang membership, where a condition of membership or continued membership is the commission of any crime.

874.05 Causing, encouraging, soliciting, or recruiting criminal gang membership.— (1) Except as provided in subsection (2) [which deals with a second or subsequent violation], a person who intentionally causes, encourages, solicits, or recruits another person to become a criminal gang member where a condition of membership or continued membership is the commission of any crime commits a felony of the third degree, punishable as provided in [various statutes]. § 874.05(1), Fla. Stat. (2009). . . . the State has a compelling interest in thwarting solicitation and recruitment into gangs where criminal conduct is a condition of membership or continued membership. See State v. J.P., 907 So. 2d 1101, 1116-17 (Fla. 2004) (finding cities’ juvenile curfew ordinances furthered the State’s compelling interest in protecting juveniles from victimization and reducing juvenile crime); State v. T.B.D., 656 So. 2d 479, 482 (Fla. 1995) (“Florida has acompelling interest in protecting the right of each of its citizens to live at peace in the sanctity of his or her home, free from violence and the threat of violence.”).

Under the second prong of strict scrutiny, we review section 874.05(1) to ascertain whether it is narrowly tailored to promote the compelling governmental interest . . . under Florida’s broad statutory definitions of “criminal gang” and “criminal gang member,” a person can join or associate with such a group without any actual intent to commit a crime. § 874.03(1), (3).

This statute criminalizes the speech and conduct of the solicitor/recruiter, rather than the person solicited or recruited.

Although the language of section 874.05(1) is silent regarding whether the solicitor/recruiter must know of the crime-related condition of gang membership, silence alone does not necessarily suggest the legislative body “intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal.” Staples v. United States, 511 U.S. 600, 605 (1994) (holding that in order to convict a defendant of illegal possession of an automatic weapon the government had to prove the defendant knew of the automatic character of the weapon); see Morissette v. United States, 342 U.S. 246, 263 (1952); State v. Giorgetti, 868 So. 2d 512, 515 (Fla. 2004).

The Legislature has narrowly tailored this law to effect its intended purpose to promote public safety and prevent crime without impermissibly intruding upon the rights of law-abiding persons or, for that matter, the discrete lawful activities of gang members.

July 6, 2012

In The odds of finding a “pattern of criminal gang activity” we examined the likelihood of a gang member committing a crime, that he was caught doing, that was considered a felony, twice, within a five-year period, after committing a prior crime for which he was caught and convicted . . .

I know, it’s confusing . . . perhaps it will still be applied.

Despite my suspicions that the law will not be used heavily by prosecutors, I am impressed that it is law, and available. This is all part of the legislature’s move to place criminal gang offenses within the state’s existing Racketeer-Influenced and Corrupt Organizations Act, or RICO, where convictions would be class B felonies with sentences ranging from at least 12 to 20 years (as we discussed in Gang Laws and their inability to be useful against real criminals.

While RICO was originally aimed at the Mafia, over the past four decades, prosecutors have used it against many organized crime groups: street gangs, gang cartels, corrupt police departments and even politicians. To violate RICO, a person must engage in a pattern of racketeering activity connected to an enterprise.

The TN Legislature appears to be making a shift toward acknowledgement that gangs are more of an organized crime problem than a juvenile delinquency problem.

BRAVO!

This shift puts us in, or at least heading toward, the Big Leagues, where states like New York, Illinois, and California (motivated by crime in New York, Chicago, and Los Angeles) have (and have had) similar laws.

Not so bravo

According to New York Criminal Procedure: (b) A criminal act is “a part of” a pattern of criminal activity when alleged in a count of enterprise corruption when it is committed prior

to commencement of the criminal action in which enterprise corruption is charged and was committed in furtherance of the same common scheme or plan or with intent to participate in or further the affairs of the same criminal enterprise to which the crimes specifically included in the pattern are connected.

I take that to mean the crime has to be gang (or other organized crime group)-related.

Illinois defines a pattern as 2 or more gang-related criminal offenses committed in whole or in part within this State when: (1) at least one such offense was committed after the effective date of this Act;(2) both offenses were committed within 5 years ofeach other; and(3) at least one offense involved the solicitation tocommit, conspiracy to commit, attempt to commit, or commission of any offense defined as a felony or forcible felony under the Criminal Code of 1961.”Course or pattern of criminal activity” also means one or more acts of criminal defacement of property under Section 21-1.3 of the Criminal Code of 1961, if the defacement includes a sign or other symbol intended to identify the streetgang.

So it appears Illinois requires the gang member to be careless enough to commit repeated crimes within the state, but they specifically include graffiti as a repeated offense?

California appears similar to ours with their Section 186.22(e), which defines a “pattern of criminal gang activity” as the “commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the offenses [enumerated therein] . . . committed on separate occasions, or by two or more persons . . . .”So where do we go from here?

Two (2) or more criminal gang offenses that are classified as felonies; or

Three (3) or more criminal gang offenses that are classified as misdemeanors; or

One (1) or more criminal gang offense that is classified as a felony and two (2) or more criminal gang offenses that are classified as misdemeanors; and

The criminal gang offenses are committed on separate occasions; and

The criminal gang offenses are committed within a five-year period.

Put another way, it means the (presumably street-wise) gang member has to avoid conviction of all but two times he commits a felony in five years to keep from having this enhancement apply to his actions.

To understand how easy this is, consider the arrest rate of people, generally, for all crimes, bearing in mind that gang members have a built-in mentoring and arrest avoidance program.

The FBI reports an arrest rate based on the population. They reported in 2009 that the arrest rate was 4,478.0 arrests per 100,000 inhabitants of the total estimated United States population (violent crime was 191.2 per 100,000 and property crime was 571.1 per 100,000). That means that an estimated 4500 arrests were made for every 100,000 people, or 4 1/2 per 100 (4.5%).

This method of calculation shows arrest rates but what about the arrest percentage, or: How likely is a perpetrator to get arrested for committing a crime?

This is often represented by a crime funnel. The funnel represents the much lower number of crimes detected and punished by the criminal justice system than the number actually committed. Early in the criminal justice system (where the police are), many arrests are made, but the number to be prosecuted shrinks as they are removed from the process. Some are dismissed, while others get referred for treatment or counseling.

Note that the basic numbers go like this. For every 1,000 crimes committed, 500 of them (that’s half) are reported to the police. Of the 500 reported to the police, 100 arrests (that’s 20% of the crimes reported and 10% of the crimes committed) are made.

And now that the police have done the hard work, the folks in the rest of the “system” take over.

Of the 100 arrests, about one-third (35%) are juveniles, and 30 of them are put on probation or have their cases dismissed. Though many gang members are juveniles, you can imagine how that wraps up — stick with me for the adult analysis.

Of the 100 arrests, about two-thirds (65%) are adults, and 25 of those cases are dropped. Of the 40 people remaining, prepared for court (a function of theCourts part of the Criminal Justice System), 10 jump bail, abscond, or otherwise take affirmative action to avoid further prosecution. From the remaining 30, 27 plead guilty in court, 2 who didn’t are found guilty, and 1 (of 30 who remain of the 100 arrested for the 1000 crimes) is acquitted.

Note, if you will, that acquitted is not the same as innocence — it’s the same as there wasn’t enough evidence to support the charges. Note, also, that the court system is where multiple incidents can be combined into one and felonies can turn into misdemeanors.

Of the 29 people sentenced, 8 of them (about 27%) are placed on probation and 21 of them are incarcerated (both are functions of the Corrections part of the Criminal Justice System).

To make sure we have that locked in and comprehended — for every 1000 crimes committed, 500 (half) get reported. Of the reported crimes, 100 arrests (one-fifth) are made. Of the people arrested, about 29 people (less than 30% of those arrested) are convicted, and 20 (one-fifth) are incarcerated. That’s a little different than the FBI numbers, don’t you think?

So, assuming a gang member doesn’t get locked up for five years, they have to fight the odds of getting convicted of two separate felonies or three separate misdemeanors during that time OR they can be identified as being involved in a pattern of criminal gang activity.

May 30, 2012

It has been my ongoing impression that the people who create gang laws think that gangs recruit exclusively from the lower-class, uneducated, unambitious parts of our society. Though some of the followers may be found in these populations, a good amount of gang leaders would make good non-gang (read: not criminal) leaders had they made different decisions. There’s a term called 3G2 (Third Generation Gangs) that may explain why focusing on the low-hanging fruit (more on that another time) is not a good idea.

With that said, our lawmakers have a habit of offering us feel-good anti-gang laws that either have no teeth or no application. I think the placement of the law in the “Laws On Children, Youth And Families section is an indicator of this.

If the laws lack teeth, police officers cannot use them for what they were (maybe) intended. An example of the no-teeth part might be seen in Tennessee Code Annoted (TCA) 40-35-121, which I have been told is fairly useless as an enhancement guideline for sentencing.

The Code allows for serious gang-related crime to be charged/enhanced one (1) classification higher than the crime committed. The requirements to be met, however, are much steeper than simply showing the suspect is a gang-member. Moving the hurdle higher is like taking the teeth out of it, the law won’t be used.

If the laws have no application, then they don’t apply to the real world — indicating the creation of the law was neither well-thought-out nor well-coordinated. An example of this no application part would be the federal legislation “intended” to prohibit active gang members from serving in the military. That’s another topic for another day.

Lately, at least in Tennessee, there appears to be a shift. Not only are gang cops consistently busting their butts to identify and arrest criminal gang activity, but now the legislators are showing signs they are listening.

The new law, introduced by Rep. Vince Dean, R-East Ridge, who introduced the bill along with Sen. Bo Watson, R-Hixson, would place criminal gang offenses within the state’s existing Racketeer-Influenced and Corrupt Organizations Act, or RICO, where convictions would be class B felonies with sentences ranging from at least 12 to 20 years. You should note, though, that cases big enough for RICO-like charges are likely to get the attention of the Federal Prosecutors, as noted by Sgt. Todd Royval. It was the federal RICO laws that were successfully used against the Mara Salvatrucha (MS-13) a few years back.

It redefines “racketeering activity” to include committing, attempting to commit, conspiring to commit or soliciting or coercing someone else to commit a criminal gang offense, including threatening or knowingly causing injury or death; receiving money or anything of value from the commission of an aggravated burglary; or from the illegal sale, delivery or manufacture of a controlled substance or firearm.

Note that it’s the RICO laws that are being expanded, but the original law is being incorporated into it. It will take some time to see if the prosecutors can/will do something with this. I know they could not before this.